Citation Nr: 0802963
Decision Date: 01/28/08 Archive Date: 02/04/08
DOCKET NO. 04-28 370 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an effective date earlier than January 26,
1998 for an award of service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew Mack, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1956 to
October 1959, and from March 1960 to August 1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama that denied the veteran's claim of
entitlement to an effective date earlier than January 26,
1998, for service connection for PTSD. The veteran perfected
a timely appeal of this determination to the Board.
In December 2007, the veteran appeared and offered testimony
in support of his claim before the undersigned member of the
Board. The veteran's testimony on that occasion has been
transcribed and associated with his claims file.
FINDINGS OF FACT
The veteran was awarded service connection for PTSD in a
December 2001 RO decision, with an effective date of January
26, 1998, and that decision became final.
CONCLUSION OF LAW
The claim to reopen the issue of entitlement to an effective
date earlier than January 26, 1998, for the grant of service
connection for PTSD, is legally insufficient. 38 U.S.C.A.
§§ 5108, 5110(a), 7105(c) (West 2002); 38 C.F.R. § 3.400
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has considered whether the Veterans Claims
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002), which became effective
on November 9, 2000, is applicable to this claim. However,
the provisions of the VCAA have no effect on an appeal, such
as the instant appeal, where the law, and not the underlying
facts or development of the facts, is dispositive in a
matter. Manning v. Principi, 16 Vet. App. 534, 542-543
(2002).
The veteran argues that he is entitled to an effective date
earlier than January 26, 1998 for an award of service
connection for PTSD. The veteran was awarded service
connection for PTSD, with an effective date of January 26,
1998, in a December 2001 RO decision. Notice of this
decision was sent to the veteran on December 20, 2001. One
year passed, the veteran did not express disagreement with
the RO decision, and the decision, including the
determination of effective date of service connection for
PTSD, became final.
Generally, a final decision issued by the RO may not
thereafter be reopened and allowed, and a claim based on the
same factual basis may not be considered. See 38 U.S.C.A.
§ 7105(c). Moreover, even assuming the presence of new and
material evidence, reopening of a claim for entitlement to an
earlier effective date can not result in the actual
assignment of an earlier effective date, because an award
granted on a reopened claim may not be made effective prior
to the date of the reopened claim. Lapier v. Brown, 5 Vet.
App. 215; (1993); 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400(q)(1)(ii); see also Leonard v. Principi, 17 Vet. App.
447 (2004).
As the effective date of service connection for PTSD in this
case was established in a December 2001 RO decision that
became final, and an award granted on a reopened claim may
not be made effective prior to the date of the reopened
claim, the instant claim can not result in the actual
assignment of an earlier effective date. Thus, the instant
claim must be denied.
The Board notes the veteran's contentions. However, where
the law is dispositive of the claim, the claim should be
denied because of lack of entitlement under the law. See
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Accordingly, an effective date earlier than January 26, 1998
for an award of service connection for PTSD is not warranted.
ORDER
Entitlement to an effective date earlier than January 26,
1998 for an award of service connection for PTSD is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs